This act has s 51(xxxviii) of the Constitution as its source.[48] Like all subsections of Section 51, s 51(xxxviii) is subject to 'the Constitution'.

Earlier in this paper we noted that 'It has been suggested that on a literal reading of the Australia Act, s15 appears to allow s8 of the Statute of Westminster to be amended or repealed so as to enable the Constitution, and particularly s 128 (see Chapter 28), to be amened or repealed otherwise than by referendum. This reading, while literally plausible, runs counter to the emerging notion of popular sovereignty (see Chapter 1). Of course, if the Australia Act did have such an effect, neither the Australia Act 1986 (Cth), or the Australia (Request and Consent Act) Act 1986 (Cth) would be constitutional as they would breach s128, which provides that: 'This Constitution shall not be altered except in the following mannerÉ. .' [49] There are two points to consider here. One is the issue of popular sovereignty; the other is whether or not s 15(1) of the Australia Act 1986 (Cth) allows for the repeal or amendment of the Constitution without breaching s128 of the Constitution.

Popular Sovereignty:

Most dictionaries describe sovereignty as 'supreme power'. Ruth Lapidoth, when interviewed about recent Israel/Palestine negotiations, said 'sovereignty is an abstract notion that makes people's feelings very strong'. [50] Tony Blackshield and George Williams in their book 'Australian Constitutional Law and Theory'[51] state:

'Geoffrey Lindell, in 'Why is Australia's Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence' (1986) 16 Federal Law Review 29, developed the view that the Constitution is binding because the Australian people accept it as their fundamental constitutional document. This view was based on the idea that all law applicable in Australia now has an Australian rather than a British source.'

The High Court has begun to develop this approach. Recent decisions have seen acceptance of the notion that the sovereignty of the Constitution now lies with the Australian people, but not without qualification. One important qualification is based on s 128 of the Constitution (see Chapter 28).'The major premise of popular sovereignty is the acquiescence of the Australian people in the constitutional system established by the Commonwealth of Australia Constitution Act 1900 (Imp). [52] However, the hierarchies established by such a system are not acquiesced in by all people, nor is Australia's constitutionalism strictly limited to that Act. [53]

Broad statements as to the reposition of 'sovereignty' in the 'people' of Australia, if they are to be given legal rather than popular or political meaning, must be understood in the light of the federal considerations contained in s 128. Those statements must also allow for the fact that none of the Australia Acts, Imperial, Commonwealth or State followed approval at a referendum, in particular, any submission to the electors pursuant to s 128 of the Constitution. Moreover, in s 15 thereof, the Australia Acts provide their own mechanism for amendment or repeal by statute and without submission to the electors at State or Commonwealth level.[54]

To think of the Constitution as a legally binding compact of the people rests upon the notion of their tacit consent - a consent that is difficult to prove or disprove. The people have not voted on the transfer of the ultimate authority over the Constitution away from the British Parliament and into their hands and their power to alter the Constitution under the terms of Constitution s128 cannot be exercised on their own initiative - their 'agreement' may in part be a product of lack of opportunity to disagree.[55]

It should be noted here that Blackshield and Williams contained their argument of whether or not the application of the Australia Act s15 could be used to breach s128 of the Constitution solely to the application of the Australia Act 1986 (Cth). They did not present the same argument under the application of the Australia Act 1986 (UK).

The Constitution is not the sole source of rules for constitutional government in Australia. However, with the exception of the Australia Act 1986 (UK) the other sources either rest on power authorised by the Constitution or are sources of law that could be controlled by means of appropriate alterations of the Constitution.[56]

Under section 15 (1) the Commonwealth Parliament, at the request or with the concurrence of each State Parliament (and without any referendum), could now repeal or amend section 8 of the Statute of Westminster in so far as the Constitution Act is concerned.[57]

With the repeal or amendment of section 8 of the Statute of Westminster to the necessary extent, the Parliament might then have the power, under section 2 (2) of the Statute of Westminster, to repeal or amend the preamble and covering clauses in the Constitution Act (see paragraph 15 above) without the need to obtain any further powers. [58]

Confirmation of this process can be found in the Constitution (Requests) Bill 1999 introduced into the Queensland Parliament.[59] This Bill contained 2 schedules. Schedule 1 provided for an amendment to include a further sentence at the end of section 8 of the Statute of Westminster 1931 viz:

Nothing in this section prevents the amendment of the Commonwealth Constitution Act by omitting the Preamble or by repealing section 2 to 8.While Schedule 2 allowed for an amendment to the Commonwealth of Australia Constitution Act of the Parliament of the United Kingdom viz:

Amendment of Imperial Act

The Commonwealth of Australia Constitution Act of the United Kingdom is amended as set out in this Schedule, so far as that Act is part of the law of Australia or of an external Territory.

Preamble

Omit the Preamble

Sections 2,3,4,5,6,7 and 8

Repeal the SectionsThe end result would have culminated in a revised Constitution Act consisting only of section 1 (the Short Title) and Section 9 (the Constitution). However, this Bill, and a similar Bill introduced into the Victorian Parliament never saw the light of day.

The Commonwealth Parliament could pass the legislation requested pursuant to section 51 (xxxviii) of the Constitution and section 15 (1) of the Australia Acts 1986 only if all the States passed requesting Acts. As there was not complete agreement between all the Sates, most of the States decided not to introduce a Bill into their Parliaments.[60]

If the aforesaid validly establishes that the Constitution Act (but not the Constitution) may be amended or repealed without a referendum, could this also mean that there may be scope to do the same with the Constitution itself given that the Constitution is part of the Constitution Act?

A High Court judgement[61] summarises the effect of s 51 (xxxviii) of the Constitution as it was interpreted in Port MacDonnell Professional Fishermen's Assn Inc v South Australia (1989) 168 CLR 340 thus:

The effect of s 51 (xxxviii) is to empower the Parliament 'to make laws with respect to the local exercise of any legislative power which, before federation, could not be exercised by the legislatures of the former Australian colonies'. It represents an actual enhancement of the legislative powers of the States because 'it confers, by implication, power upon the Parliament of a State to participate in the legislative process which the paragraph requires, namely request (or concurrence) by a State Parliament and enactment by the Commonwealth Parliament'. There is a potential enhancement of State legislative powers because the Parliaments of the States are the potential recipients of legislative power under a law made pursuant to the paragraph. Any room for an inhibition against giving to the grant in s 51 (xxxviii) its full scope and effect by reason of what was once the status of the Commonwealth itself within the British Empire no longer applies.

Now, s 51 (xxxviii) is subject to the Constitution. That being the case, does s 51 now have the effect to void any law made to amend or repeal the Constitution under s 15 (1) of the Australia Act 1986 (Cth) given the High Court has now put to rest any doubts as the validity of this Act?[62] If the answer is 'Yes', could a similar effort under s 15 (1) of the Australia Act 1986 (UK) overcome this technicality?